Water Law Update
 
December 13, 2005
 
Roger W. Sims- Orlando

Southeastern U.S.

On September 19, 2005, the Eleventh Circuit Court of Appeals in Atlanta reversed earlier orders by the United States District Court for the Northern District of Alabama, which in effect gave Atlanta and the State of Georgia a win in the latest battle of the Georgia/Alabama/Florida water wars. Alabama v. United States Army Corps of Engineers, (Eleventh Circuit Court of Appeals, No. 03-16424, September 19, 2005). The Alabama Court’s decisions had blocked efforts by the City of Atlanta to obtain additional water from Lake Lanier and the Chattahoochee River.

The dispute between Georgia, Alabama and Florida is convoluted, like many other aspects of the water war over the Apalachicola, Chattahoochee and Flint Rivers. Florida has been vigorously opposing the efforts by Atlanta to take more river water for its booming demand, because in-stream flows are considered essential to the seafood industry and aquatic health of Apalachicola Bay. Alabama has somewhat different concerns, including navigation and commerce. The decision of the federal appeals Court clears the way for implementation of an earlier settlement approved by the D.C. Circuit, which requires full review of potential water withdrawal impacts under the National Environmental Policy Act of 1969 (NEPA). Georgia and the Corps will likely pursue the NEPA review as soon as possible, since it must be completed before the Corps can enter into any additional contracts for water supply.

California

On the western front, U.S. Court of Federal Claims Judge Francis Allegra denied a $100 million claim by Klamath River basin irrigators in Klamath Irrigation District v. United States, (U.S. Court of Claims, No. 01-591 L, opinion filed August 31, 2005). The plaintiffs included 13 agricultural landowners and 14 water, drainage, or irrigation districts, who collectively argued that they were entitled to compensation due to diversion of water from their agricultural operations to protect certain species of suckerfish and coho salmon. Part of the compensation claims were based on breach of contract, while others were based on “Klamath Project water rights.”

Judge Allegra found that the plaintiffs had no property rights to the water and thus no entitlement to compensation for “taking” of private property by the government as a result of its implementation of the Endangered Species Act. Instead, the Court concluded that the dispute would have to be resolved on the basis of contract law. This decision is contrary to the decision in late 2004 concerning the Tulare Lake Basin Water Storage District. In that case, federal claims Judge John Wiese upheld the paying of $23.7 million in damages and interest, stating that the government “is free to preserve the fish, it must simply pay for the water it takes to do so.” Judge Allegra sharply rejected the reasoning by Judge Wiese, concluding that “… with all due respect, Tulare appears to be wrong on some counts, incomplete in others and, distinguishable, at all events.”

For more information, e-mail Roger Sims at roger.sims@hklaw.com or call toll free, 1-888-688-8500.